Nash, nearing
the end of his long tenure as the presiding juvenile court judge, unveiled the
replacement for his 2012 blanket order that was struck down five months ago in In
re A.L., 224 Cal. App. 4th 354. Presiding Judge David Wesley last month
named Judge Michael Levanas, currently supervising probate judge, as Nash’s
successor, but a court spokesperson Friday said a date for the handover has not
yet been set.

Nash did not run
for re-election this year, and his term will end Jan. 5.

The A.L. court
said the original order, challenged by attorneys at Children’s Law Center—the
publicly funded entity that represents children in dependency
proceedings—created a broad presumption in favor of open courts, contrary to
Welfare & Institutions Code §346. The statute closes dependency proceedings
to the press and public unless a bench officer finds that access should be
given to a person with “a direct and legitimate interest in the particular case
or the work of the court.”

Prior Ruling

Friday’s order
did not refer to In re A.L., but cited a number of other cases and
statutes for the proposition that “Dependency Courts are not completely
closed.” The intent of the blanket order, Nash wrote in the introduction, is to
“establish an orderly process to allow appropriate access to the Dependency
Court.”

Under the new
order, each judicial officer will, at the outset of a hearing, determine who is
present in the courtroom and which of such persons have a mandatory statutory
right to be present. If any person lacks such a right, he or she will be
required to state the reason for being present, and it will then be up to the court to
determine whether “that person has a direct and legitimate interest in the
particular case or the work of the court and, based on the record before it,
there is no reasonable likelihood that access will be harmful to the child’s
best interests.”

In her A.L. opinion,
Justice Elizabeth Grimes suggested that the §346 presumption in favor of
closure may not have been uniformly applied in recent years. Reductions in
court staffing, she said, may have resulted in a situation where no attention
was paid to the witnesses, lawyers, or parties from other cases who may be
present in a courtroom, or that judges may simply be permitting spectators to
be present, absent an objection in a particular case.

But nothing in
§346 or in the Rules of Court, Grimes said, “supports a rule of law that a
child has the burden to discover the identity of strangers in the courtroom and
voice an objection before the media may be excluded.”

Objections
Permitted

Under Friday’s
order, counsel for any party may object to presence of the media or members of
the public, before or after the court makes the required findings regarding
such presence.

“The party
objecting shall produce evidence that harm to the child or family is reasonably
likely to occur because access is allowed,” the order provides. “The person
seeking access shall have the burden of persuading the Court that there is no
reasonable likelihood that access will be harmful to the child’s best
interests.”

Factors to be
considered in determining whether to allow access include the age of the child,
the nature of the allegations, and the likely impact on the child and the
family, “consistent with the overriding purpose of the proceeding to protect
the child and advance his or best interests.”

After balancing
the interests involved, the order says, a person who lacks a mandatory right to
attend may be excluded only if the person lacks “a legitimate interest in the
case of the work or the court,” or if the person’s legitimate interest in
viewing the proceedings is outweighed by the other interests addressed by the
order, based on the evidence and arguments presented.

Rules governing
recording, videotaping, and photographing proceedings are the same as for other
court proceedings under the California Rules of Court, the order says.

David Estep, a
supervising attorney at CLC, said Friday’s order is “definitely an improvement
over the previous order,” but that CLC is not yet in a position to endorse it.
Appellate specialists within CLC are considering the content, he said, and it
is likely that if any challenge is to be made, it would be based on an actual
application of the order where there was “some detriment” to a client, as in A.L.

In that case,
which involved alleged physical abuse, the CLC attorney asked that a reporter
be excluded because the facts of the case were “particularly brutal” and the
15-year-old client did not want to discuss private information in front of
strangers.

A Superior Court
judge said that under the blanket order, the burden was on the minor’s counsel
to establish a likelihood of harm, and that counsel had failed to do so. The
denial of exclusion was then appealed, even though the case went forward and
resulted in the court assuming jurisdiction.